Case: 11-10968   Document: 00512573888    Page: 1   Date Filed: 03/26/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                                                   March 26, 2014
                                No. 11-10968
                                                                    Lyle W. Cayce
                                                                         Clerk
LARRY NUELL NEATHERY,

                                          Petitioner-Appellant,
v.

WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

                                          Respondent-Appellee.




                Appeals from the United States District Court
                     for the Northern District of Texas




 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before JOLLY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:
      Larry Nuell Neathery, Texas prisoner # 1357905, seeks a certificate of
appealability (COA) to appeal the district court’s dismissal of his 28 U.S.C. §
2254 application challenging his conviction for 13 counts of aggravated sexual
assault, nine counts of indecency with a child, two counts of sexual
performance of a child, and one count of attempted aggravated assault.
      We previously issued an order denying Neathery’s motions for a COA
and appointment of counsel, noting that the district court had concluded that
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                                   No. 11-10968

some of Neathery’s claims were unexhausted and procedurally defaulted and
that his remaining claims did not entitle him to federal habeas relief. In our
order, we found that Neathery had failed to make “a substantial showing of
the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2), citing Miller-
El v. Cockrell, 

, 336 (2003).     We concluded that Neathery had
failed to make such a showing with respect to all his claims, both those that
the district court had found were procedurally defaulted and those that it
addressed on the merits. Thus, we denied the COA in full.
      In a petition for rehearing en banc to this Court, which we denied, and
in a petition for writ of certiorari to the Supreme Court, Neathery argued that
his claims which the district court found were procedurally defaulted should
be reviewed on the merits in light of the Supreme Court’s decision in Martinez
v. Ryan, 

(2012).    Martinez held that federal courts could still
hear certain ineffective assistance of counsel claims which would otherwise be
procedurally defaulted if the state required such claims to be brought in the
initial collateral review proceeding in state court but the petitioner either
lacked counsel or had ineffective counsel in that collateral proceeding.
      The statutory scheme in Texas, unlike the one at issue in Martinez, does
not on its face require a defendant to bring ineffective assistance of counsel
claims only in the initial collateral review proceeding but also allows the
defendant to bring them in the direct criminal appeal.          Nevertheless, in
Trevino v. Thaler, 

(2013), the Supreme Court reasoned that
although the Texas statute did not appear to require a defendant to raise the
claim in the initial collateral review proceeding, that is how it was applied in
practice.   Thus, the rule of Martinez applies and preserves for federal habeas



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                                 No. 11-10968

review certain claims of ineffective assistance of counsel which would
otherwise be procedurally defaulted.
      In light of the new rule announced in Trevino, the Supreme Court
granted Neathery’s petition for writ of certiorari, vacated our prior order, and
remanded for us to reconsider his petition for COA.        We find that, under
Trevino, it may be possible for the district court to hear at least some of
Neathery’s claims of ineffective assistance of trial counsel which would
otherwise be procedurally defaulted, to the extent Neathery either lacked
counsel or had ineffective counsel in his initial collateral review proceeding in
state court.   However, we are unable to determine from the record which, if
any, of his ineffective assistance of counsel claims may be preserved for review
under Trevino.
      Accordingly, we remand to the district court for reconsideration of the
Petitioner’s ineffective assistance of trial counsel claims in accordance with
Trevino and Martinez.     On remand, the district court should (1) determine
which, if any, of Neathery’s ineffective assistance of trial counsel claims are
preserved because he alleged that he either lacked counsel or had ineffective
counsel in his initial collateral review proceeding in state court; and (2)
determine the merits of any preserved claims.       If Neathery so requests, the
district court may in its discretion stay the federal proceeding and permit him
to present his preserved claim(s) in state court.
      As to claims already addressed on the merits by the district court and
claims which are procedurally defaulted and not preserved by Trevino, we deny
Neathery’s COA.




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